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Janet Roberts

California Spam Law Traps: Solo Ad Mailings, Co-Reg
By Janet Roberts

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I don't know whether it is irony or coincidence, but on the same day an Ezine-Tip reader asked me about the new California anti- spam law, I got spam-bombed by a California legislator who wants to unseat the governor who signed that bill into law.

The McClintock for Governor! campaign (complete with exclamation point) violated just about every section of the new law:

  • It sent unsolicited commercial email, seeking contributions to Sen. Tom McClintock's election campaign, from an Auburn, Calif.-based IP address to addresses that had clearly been harvested or automatically generated and would not have requested information or had any previous business dealings with the senator or his campaign.

  • You could stretch things a bit and say the subject line was deceptive -- which the new law prohibits -- because its bland "A Message about Senator Tom McClintock," hid an attack on Calif. Gov. Gray Davis and a solicitation for money and volunteers.

  • It didn't provide an opt-out in the mailing.

Those are some of the basic provisions in the new law, which Davis signed on Sept. 23, 2003. While it is a California-based law, it's broad enough to affect senders and recipients beyond state borders until Congress enacts a federal law.

The law doesn't specifically cover email-newsletter publishers, but those who send solo ad mailings or build their lists using co-registration or rented email lists face potential liability.

Spam-Law Traps for Email Publishers

Gary Weeks is one of a group of email publishers who are worrying about the effect the 2003 California anti-spam law will have on his business.

"Do you have any info on the new California law touted to make sending unsolicited email a crime?" he wrote shortly after Davis signed the bill, Senate Bill 186.

"When will this go into effect? What are good strategies to protect from litigation? Please advise."

The law is scheduled to go into effect on Jan. 1, 2004, barring a court challenge. It is aimed at email marketers and the companies that advertise in email, but it can cause big problems for newsletter publishers, too.

The law's complete text is here.

Some highlights:

  • You need direct consent or a pre-existing or current business relationship to send commercial email to or from California email addresses.

  • "Direct consent" "means that the recipient has expressly consented to receive email advertisements from the advertiser, either in response to a clear and conspicuous request for the consent or at the recipient's own initiative."

  • "Pre-existing or current business relationship" means "the recipient has made an inquiry and has provided his or her email address, or has made an application, purchase, or transaction, with or without consideration, regarding products or services offered by the advertiser."

  • The law defines commercial email as "any electronic mail message initiated for the purpose of advertising or promoting the lease, sale, rental, gift offer, or other disposition of any property, goods, services, or extension of credit.

  • The law provides for individual right of action. This means that an individual email recipient, not just an ISP or public official, can bring a complaint against you.

Although the law speaks mainly to email marketers and the companies that advertise through email, it has two potential trouble spots for email publishers:

  • Email newsletter publishers who send solo ad mailings

  • Because these are strictly commercial announcements, someone who opted in to your newsletter but objects to the ad could have grounds to complain.

    If you send solo mailings as part of your business, be sure you state that clearly on your subscription forms and in your confirmations. To be strictly compliant, you should actually run two lists, one of people who want only the newsletter and one of people who agree to receive both. Offer some inducement to get people to sign up for both.

    The law also outlaws not just sending spam but using it to advertise. A disgruntled subscriber could hold this part of the law against your solo ad sponsor.

    You're not off the hook even if you can show that you're sending only permission-based email. If a court finds your mailing violated the law, you could still be fined $100 instead of $1,000 per message up to a total $100,000.

  • Publishers who rent lists or use co-registration to build their subscriber lists

  • Some email marketers say the California spam law is the death knell for list rental and co-reg, mainly because the law is vague on whether opt-in permission transfers from the list or co-reg site owner to the publisher or advertiser.

    Until this issue gets ironed out in the courts, assume for now that subscribers must opt in directly to you. Instead of swapping lists with other publishers for solo mailings or subscription solicitations, trade ad space.

Whether any big marketing companies will challenge the law in court isn't clear; nobody has stepped up with a lawsuit yet. And, even if the courts invalidate one section of the law, it's written so that the rest of the law remains valid.

Ezine-Tips for October 07, 2003

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